Trolling for Patents - Inventions vs Ideas

I recently read an article article on NPR's website about patent trolling. I do not want to criticize or attack individual companies; rather I want to share some thoughts about the implications of such behaviors.

For those who haven't read the article, patent trolling is the practice of amassing a collection of patents, and then making use of those patents for profit. One method is to offer consulting services or legal protection by selling the patents to companies that need them for protection. Another more sinister use is to go on the offensive, and start suing large numbers of companies for patent violations, in order to collect damages.

I suppose that I was naive to think that such things did not exist. Our laws inadvertently allow people with specialized knowledge of patent law and technology to sue others for unknowingly using their ideas. The problem with software patents is that they are sometimes very vague, and dozens of patents can be issued for the same idea. They also often describe commonplace ideas or technologies, like pop-up windows and internet-based commerce. Therefore, it becomes very easy to sue someone for running an on-line store.

I think the courts have gotten it all wrong regarding actual inventions vs. ideas. Many software patents appear to be simply ideas. In fact, I would argue that most software IS ideas. It is a logical expression of the abstract. When software is packaged into a finished, standalone product, like Turbotax or Photoshop, that is an invention, and should be able to hold a patent. But ideas and practices that are shared across thousands of different products seem to be more abstract, and I don't think those should be patentable. In other words, actual things or concrete processes should be able to hold patents, but ideas, outlines, and theories should not. It is too easy for disparate people to come up with the same or similar ideas for them to have to fight to see who has to pay who for the idea. The implementations of the ideas would necessarily be different, and so to me they should not have to watch out for each other.

The implication I worry about most is that almost anything in software could be construed to be patented. As the article mentioned, this kills innovation and actual inventions. If I ran a company, I would be worried that someone with money and connections would come after me, claiming that I stole their idea. Me being me, I would probably rather not run the company at all in such an environment. If many people choose the same, actual innovation will decline, due to the fear of litigation.

I also view this as an extension of our litigation-crazy society. People who feel in any way wronged or entitled to something will use any nook or cranny of the law to get what they want, no matter the consequences. It makes it hard for decent people to be in business, and especially difficult for small businesses. Alas that I don't currently have the power to change any of this - I can only sympathize.